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[2012] ZALAC 22
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Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others (JA 78/10) [2012] ZALAC 22; [2012] 11 BLLR 1099 (LAC); (2012) 33 ILJ 2812 (LAC) (24 July 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR APPEAL COURT OF SOUTH
AFRICA, JOHANNESBURG
JUDGMENT
Case number: JA 78/10
KIEVITS KROON COUNTRY
ESTATE (PTY) LTD
…......................................................................................
Appellant
and
JOHANNA MMOLEDI
…......................................................................
First
Respondent
COMMISSIONER K D MATJI
….....................................................
Second
Respondent
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION
….................................................
Third
Respondent
Heard: 20 March 2012
Delivered: 24 July 2012
Summary: appeal- review test
restated-the decision of the commissioner not the one that a
reasonable decision maker could not reach-distinction
between appeal
and review significant in scrutinising the decision based on
reasonableness
Section 23 of the BCEA not
applicable where an employee does not claim to have been absent from
work on account of sickness or injury
and also not demanding payment
for days when absent.-employee attending sangoma sessions- reasonable
accommodation by employer
encouraged.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
TLALETSI, JA
Introduction
[1] This is an appeal against the
whole of the judgement of the Labour Court (per Francis J) in a
review application brought by
the appellant in that court against an
award issued by the second respondent (“the commissioner”)
on 18 July 2008.
The commissioner sat as an arbitrator in a dispute
of unfair dismissal referred to the third respondent being the
Commission for
Conciliation, Mediation and Arbitration (“the
CCMA”) by the first respondent (“the respondent”)
against
the appellant.
[2] In the award, the commissioner
found that the dismissal of the employee was substantively unfair. As
relief the commissioner
held:
‘
[the
appellant] is hereby ordered to reinstate the respondent with
immediate effect on the same terms and conditions of employment
which
existed before her dismissal. The order of reinstatement is without
any retrospective payment.’
The appellant was allowed 21 days from
the date of receipt of the award to comply with the award.
[3] The court below dismissed
Appellant’s review application on 1 October 2010 and made no
order as to costs. The appellant
applied for leave to appeal against
the judgment and order of the court below, and the said application
for leave to appeal was
dismissed with costs on 16 November 2010.
Aggrieved by this decision the appellant petitioned the Judge
President of this Court
and leave was granted on 4 May 2011. A
detailed notice of appeal was served and filed on 23 May 2011.
Factual Background
[4] For a better understanding of the
issues in this appeal, a brief background of the relevant facts is
necessary. Most of these
facts are, unless otherwise stated, common
cause. The appellant conducts a business of conference and leisure
resort. It employed
the respondent with effect from 21 June 1999. She
was with effect from 1 March 2005 promoted to the position of Chef De
Partie
(“Chef”).
[5] Prior to the incident that led to
the respondent’s dismissal, the latter approached the Executive
Chef of the appellant
(Mr. Stephen Walter) and reported that she was
attending a ‘traditional healer’s course’. She
requested that
she work morning shifts only so that she can be able
to attend the sessions without adversely affecting her employment
obligations.
Walter felt that the request would have an impact on
other chefs in the kitchen. He convened a meeting of the relevant
parties
at which the respondent’s request was discussed. The
entire staff had no problem with the request and agreed to
accommodate
the respondent as requested. The respondent also
undertook to, where possible, assist with the night shifts. The shift
schedule
was changed and the employee worked morning shift.
[6] In the course of time, the
respondent approached Walter and reported that she was about to
complete her Sangoma “course”
and that she was now
required to attend full time for a month. She requested that she be
allowed an unpaid leave for the entire
month. Walter consulted the
Human Resources Manager (Andri Dreyer). It would appear that the two
were willing to accommodate the
respondent by allowing her to utilise
her leave days. However, they noted that the respondent did not have
leave days. She was
offered only one week unpaid leave of absence.
The respondent found a week to be insufficient for the completion of
her “course”.
[7] It is common cause that the
respondent was scheduled to be off duty from 3 to 5 June 2007. On 1
June 2007 the respondent left
two documents on the desk of Dreyer.
She failed to report for duty on 2 June 2007. She was expected back
from off duty days on
6 June 2007. She did not report for duty on
this date. She instead phoned Dreyer and asked him if he had seen the
documents she
left on his desk. Dreyer acknowledged receipt of the
documents but told her that they did not change their position and
that unless
she reported for duty she would face disciplinary action.
According to the appellant’s disciplinary code, a person who
absents
himself/herself from duty for three or more days has to face
disciplinary action.
[8] It is apposite at this stage to
refer to the letters that are the subject of discussion. The one
letter bears the letterhead
“North West Dingaka Association”
and the “Traditional Healer” is Agnes Mmamorena Masilo. A
street address
as well as the cellular phone number is provided. The
body of the letter reads:
‘
This
serves to certify that
JOHANNAH
MMOLEDI
was seen by me on
13-01-07
and was diagnosed to have
PERMINISIONS
OF ANCESTORS.
He/She
under my treatment from
13-01
to
8
th
July 2007
.
He/She
will be ready to assume work on
8
–
07-2007
.’
The letter is dated 31 May 2007 and
bears a signature of the traditional healer.
[9] The second letter is headed
‘PREPARATION OF GRADUATION CEREMONY OF JOHANNAH MAITE MMOLEDI’.
The body reads:
‘
I
hereby inform you of the Graduation of the abovementioned Patient. I
am asking you to please give her days from the 4
th
of June to the 8
th
July 2007 to complete her initiation school final ceremony to become
a traditional healer.’
[10] The employee was subjected to
disciplinary inquiry where she faced the following charges:
‘
RULE
24: Non compliance with established procedure and/ or managerial
instructions, being detrimental to the company;
RULE
38: Absent without a valid reason for 3 days or more;
RULE
47: Gross insubordination/challenge of employer’s authority/
not submissive to supervisors or management authority;
RULE
48: Wilfully does, allows or causes to be done anything detrimental
to the company, its discipline and efficiency.’
[11] Despite the respondent’s
challenge to the charges, she was found guilty of all the alleged
instances of misconduct. The
chairperson of the disciplinary enquiry
noted that the respondent’s explanation for her absence was
firstly to undergo ‘the
Sangoma training’ and graduation
or that she was ill ‘since spirits of forefathers were
bothering her’. As regard
the first explanation, the
chairperson held that he could not accept that ‘an employee
will attend unrelated courses on company
time that would have no
benefit in the specific area of economic activity of the employer’.
With regard to the second or
alternative explanation, the chairperson
held that the respondent ‘did not hand in any letter by any
medical practitioner
as required by the Basic Conditions of
Employment Act that would provide proof of this alleged illness’.
The chairperson
rejected ‘all her excuses’ and
recommended the sanction of dismissal from the date on which she
“absconded”.
Arbitration Proceedings
[12] Aggrieved by the dismissal, the
respondent referred an unfair dismissal dispute to the CCMA. After an
unsuccessful conciliation,
the matter was arbitrated by the
commissioner. The commissioner, after listening to the evidence of
Walter and Ms. Dreyer on behalf
of the Appellant and the evidence of
the employee and her witness Ms. OAM Masilo (the traditional healer),
made the following remarks
in her award:
‘
It
appeared very clear from the evidence of the [appellant’s]
witnesses, that they did not regard the [respondents] condition
as a
disease that would have qualified her for sick leave. Mr Walter
stated in his evidence that he would have done the same thing
if an
employee would have requested unpaid leave for a karate course. Mrs.
Masilo stated that the [respondent] was very ill when
she came to her
for treatment. She stated further that the [respondent] would have
died or suffered a serious misfortune if she
would have ignored the
ancestors’ calling and continued to work, she would have
collapsed and no one would have been able
to help her
.’
[13] The commissioner remarked further
that it was abundantly clear that the parties in the case had
conflicting and competing interests
and further that there was a lack
of empathy and understanding of cultural diversity in the appellant’s
workplace. The commissioner
noted Walter’s evidence that they
were short-staffed at the time and that it was a busy period; and
that the respondent would
not have been dismissed had she submitted a
medical certificate issued by a registered medical practitioner.
[14] The commissioner went on to say:
‘
An
average person values his or her life as more important than anything
else and will do anything to save his or her life. The
[respondent]
was faced with two evils and she chose the lesser evil. In fact, she
found herself in a situation of necessity where
the only recourse was
to break the employer’s rules in order to save her life.
Necessity knows no law. It is only those people
who are endowed with
extraordinary qualities of courage, bravery and endurance who would
risk their lives or sacrifice their lives
for others. The applicant
seemed to be an average person who did not posses those supernatural
qualities.
In
my view it would appear that the applicant was justified to choose a
course that would save her life. In the normal course of
events and
according to human experience, any person would have acted like the
applicant did to save her life. A person lives once
only and I can
hardly imagine any person taking a chance that would cause his life.
Life ranks higher in the scale of legal values
than property and
other things. Therefore clearly, the life of the [respondent] was
more important than the interests that the
[appellant] sought to
safeguard and protect when it declined to grant the [respondent]
leave. The respondent would not have suffered
any irreparable harm
arising from the absence of the [respondent].
In
the light of the exposition above, the inescapable conclusion at
which I have arrived is that the applicant’s absence from
duty
was due to circumstances beyond her control. In other words, the
applicant was justified to disregard the respondent’s
instructions and attend the sangoma course. The respondent’s
instructions and refusal to grant the applicant unpaid leave
was
unreasonable as the consequence thereof would have been to place the
life of the applicant at risk. Rather than risk the wrath
of the
ancestors, the applicant decided to act against her employer’s
wishes
.’
Proceedings in the Labour Court
[15] As pointed out already, the
commissioner found the dismissal of the respondent to have been
substantively unfair and made the
award referred to in para 2 above.
The appellant thereafter instituted review proceedings in the Labour
Court to have the award
reviewed and/or set aside in accordance with
the provisions of section 145, alternatively section 158 of the
Labour Relations Act
1
(the Act). The grounds upon which the
award was challenged as contained in the founding affidavit are that:
15.1 the award is not justifiable in
relation to the reasons given for it;
15.2 no rational link existed between
the evidence before the commissioner and the factual conclusions that
were crucial to the
award;
15.3 the commissioner has been so
grossly careless as to have committed misconduct;
15.4 the commissioner committed an
irregularity by putting himself in a position where he separated
himself from the true facts
of the matter and erred in his
application of the law;
15.5 the commissioner exceeded his
powers because of the absence of a rational connection between the
evidence and his factual conclusions.
[16] The Labour Court in its judgment,
inter alia,
analysed the evidence and the award of the
arbitrator in great detail and held that in assessing the fairness of
the dismissal
for absenteeism, the following factors are normally
considered namely, the employee’s work record; the reason for
the employee’s
absence; and the employer’s treatment of
this misconduct in the past. The court below held further that the
onus rests on
the employee to tender a reasonable explanation for his
or her absence. The Labour Court remarked further that the
commissioner
found that the respondent had breached the appellant’s
rule but that she was justified to do so and concluded thus:
‘
It
is common cause that the [appellant] knew that the [employee] was
attending a course to become a Sangoma. It had assisted her
in the
past to attend the said course. Arrangements were made with her to
work morning shifts and to attend the course in the afternoons.
This
was from February 2007 to May 2007. The [appellant] was approached at
the end of May 2007 for permission to take one month’s
unpaid
leave to complete the training course. The appellant refused although
the [respondent] had produced a traditional healer
certificate that
was treated with contempt by the [appellant]. The [appellant] knew
what the reasons were for the [respondent’s]
absence. The
duration of absence was going to be for a month. She had been working
for the [appellant] for eight years. The explanation
tendered for the
absence was to attend a Sangoma course to appease her ancestors. This
is not one of those cases where an employer
did not know about the
whereabouts of the employee. It was prepared to give her a week off
as unpaid leave. The commissioner found
that the explanation that she
tendered was reasonable. This court cannot second guess the
commissioner’s findings.’
[17] The Labour Court reminded itself
that it was sitting as a review court and not on appeal and concluded
that the commissioner
had rendered a well reasoned award in which he
dealt with why he believed that the dismissal was harsh and why
reinstatement was
appropriate; that the grounds of review were
baseless; and finally that it was satisfied that the award rendered
by the commissioner
is one that ‘a reasonable decision maker
would have made’ and dismissed the application for review with
no order as
to costs.
The Appeal
[18] The appellant’s contentions
on appeal which encompass its grounds of appeal may be summarised as
hereunder: The Labour
Court:
18.1 should have found that the
commissioner committed misconduct and arrived at a decision which a
reasonable decision-maker will
not reach when finding that the
employee had an excuse valid in law for her to be absent for several
weeks without leave to attend
a Sangoma course.
18.2 erred in failing to find that in
enacting the Labour Relations Act and the Basic Conditions of
Employment Act (“the BCEA”)
the legislature opted for
standards more akin to western standards than to African culture, of
which sections 23(1) and 23(2) of
the BCEA constitutes the clearest
example.
18.3 erred in failing to find that the
commissioner assumed the function of the legislature by elevating the
role of traditional
healers to medical practitioners, notwithstanding
the common cause that the practices of traditional healers were not
regulated
by an Act of Parliament or Professional Council,
18.4 erred in failing to find that the
commissioner discarded case law where it was held that a certificate
issued by a traditional
healer could not be regarded as a proper
certificate which an employer should seriously consider when weighing
the adequacy or
otherwise of the reasons for the absence of an
employee.
18.5 erred in failing to find that the
effect of the commissioner’s findings and award is to open the
floodgates to malpractices
that operate towards turning the work
environment into total disarray, contrary to the latter and spirit of
Labour Legislation,
more particularly in as much as the green light
is given to employees who believe in and subscribe to the African
traditions and
culture to unilaterally diagnose themselves as
suffering from some disorder or illness and to expect employers to be
bullied into
accepting sick notes from traditional healers on the
same footing as medical certificates that conform to section 23
aforesaid
for unspecified period of absence.
[19] The ground of appeal of the
alleged descent into the arena and interruptions by the Labour Court
and that it demonstrated bias
towards the appellant was abandoned
during argument. The appellant’s attorney assured us that there
was nothing untoward
and that the appellant received a fair hearing
in the Labour Court. It is therefore not necessary to make any
remarks about the
said ground in this judgment.
The Review test
[20] The formulation of the test for
review for reasonableness in
Sidumo
and
Another
v
Rustenburg
Platinum Mines Ltd and Others
2
is whether the decision reached by the
commissioner is one that a reasonable decision maker could not reach.
The aim of the test
as formulated by the Constitutional Court is to
give effect to the constitutional right to fair labour practice and
the right to
administrative action which is lawful, reasonable and
procedurally fair. Section 145 of the Act must therefore be read in
such
a way so as to ensure that administrative action by the CCMA is
lawful, reasonable and procedurally fair. The Constitutional Court
in
Sidumo
emphasised
that the distinction between appeals and reviews continues to be
significant in scrutinising a decision based on reasonableness
and
that ‘a judge’s task is to ensure that the decisions
taken by administrative agencies fall within the bounds of
reasonableness as required by the constitution’.
3
This means that in order to assail an
award of the commissioner of the CCMA on the
Sidumo
test, it is incumbent on
the party to also assail the result of the award and not the reasons
of the commissioner only. Put differently,
the focus is on whether
the result of the award falls within a range of reasonable results
and not whether it is in fact the correct
one. The question is
whether there is justification for the decision on the material
before the commissioner.
4
[21] It must be mentioned though that
an award issued under the auspices of the CCMA can still be reviewed
on the grounds specified
in Section 145 of the Act, namely,
misconduct, gross irregularity and excess of powers. See
Fidelity
Cash Management Service
v
CCMA and Others
,
5
Maepe
v
CCMA and Another
,
6
NUM and Another
v
Samancor Ltd
.
7
Analysis
[22] It is unfortunate that much
emphasis was placed on the fact that the employee claimed to be sick
and that the certificate from
her traditional healer did not
constitute a valid certificate as required by section 23 of the BCEA.
It was also contended at length
that no acceptable medical evidence
was presented to show that the employee was ill.
[23] It is not my understanding of the
facts of this case that the employee’s case was that she was
sick or ill in the conventional
sense. Her case was that, based on
her cultural and or traditional belief she was in a ‘condition’
and upon consultation
with those that she believed to be in a
position to assist her, being a traditional healer, informed her that
she must undergo
some sessions that would qualify her to be a sangoma
as she had a calling from her ancestors. This conclusion is evident
from the
conduct of the parties when the issue started. The employee
was accommodated without any question whether she was sick in the
conventional
sense. No medical evidence was required to prove that
she was indeed sick. Her condition or what she claimed to have been
going
through her was accepted as such without questions.
[24] The problem seems to have started
when the employee required a full month to conclude her sangoma
sessions. It is only then
that when it was found that she did not
have sufficient leave days to take for a full month to comply with
her request and when
she found a week of absence offered to
accommodate her to be insufficient, that the issue of illness and
medical proof came to
the fore. The appellant then took the view that
she could only be accommodated if she produced a “medical
certificate”
as proof of her “medical condition”.
On the other hand, the employee, in an attempt to comply with the
requirements,
obtained a certificate from the person who was in
charge of treating her “condition”.
[25] Section 23 of the BCEA provides,
inter alia
, that an employer is exempt from paying an employee
on sick leave if the employee has been absent from work for more than
two consecutive
days or on more than two occasions during an eight
week period and fails to produce a medical certificate stating that
the employee
was unable to work for the duration of the employee’s
absence on account of sickness or injury, when requested by the
employer
to produce such a certificate. In this case, the employee
was not seeking any remuneration for the period when she would be
away
from work due to ill health. The common cause fact is that she
requested to be accommodated by being given a month’s unpaid
leave to complete a process that she had already started. Section 23
of the BCEA, therefore, finds no application on the issue
in this
case. Similarly, the argument that by enacting section 23 of the BCEA
the legislature in express terms opted for standards
in line with
Western standards as opposed to African culture is misplaced as well.
I am as a result unable to find, as we are urged
to do, that the
commissioner usurped the function of the legislature by elevating the
role of traditional healers to that of medical
practitioners.
[26] It was contended further that the
effect of the commissioner’s findings and award is to open the
floodgates to ‘malpractices
that operate towards turning the
work environment into total disarray, contrary to the latter and
spirit of labour legislation’.
It would be disingenuous of
anybody to deny that our society is characterised by a diversity of
cultures, traditions and beliefs.
That being the case, there will
always be instances where these diverse cultural and traditional
beliefs and practices create challenges
within our society, the
workplace being no exception. The Constitution of the country itself
recognises these rights and practices.
It must be recognised that
some of these cultural beliefs and practices are strongly held by
those who subscribe in them and regard
them as part of their lives.
Those who do not subscribe to the others’ cultural beliefs
should not trivialise them by, for
example equating them to a karate
course. What is required is reasonable accommodation of each other to
ensure harmony and to achieve
a united society. A good example of
accommodation was demonstrated by Walter when the respondent first
approached him about his
challenge. Walter correctly involved other
staff members and they all found a common ground to accommodate the
employee. The fact
that the appellant’s attorney does not
believe in the authenticity of the culture and that no credible and
expert evidence
was presented to prove that the respondent was ill
is, in my view, subjective and irrelevant. A paradigm shift is
necessary and
one must appreciate the kind of society we live in.
Accommodating one another is nothing else but “botho” or
“Ubuntu”
which is part of our heritage as a society.
[27] Regarding the opening of the
floodgates, I can do no better than to refer to what Langa CJ said in
MEC for Education
,
Kwazulu-Natal and Others
v
Pillay
,
8
‘
The
other argument raised by the school took the form of a ‘parade
of horribles’ or slippery slope scenario that the
necessary
consequence of a judgment in favour of Ms Pillay is that many more
learners will come to school with dreadlocks, body
piercings, tattoos
and loincloths. This argument has no merit. Firstly, this judgment
applies only to bona fide religious and cultural
practices. It says
little about other forms of expression. The possibility for abuse
should not affect the rights of those who
hold sincere beliefs.
Secondly, if there are other learners who hitherto were afraid to
express their religions or cultures and
who will now be encouraged to
do so, that is something to be celebrated, not feared. As a general
rule, the more learners feel
free to express their religions and
cultures in school, the closer we will come to the society envisaged
in the Constitution. The
display of religion and culture in public is
not a ‘parade of horribles’ but a pageant of diversity
which will enrich
our schools and in turn our country. Thirdly,
acceptance of one practice does not require the school to permit all
practices. If
accommodating a particular practice would impose an
unreasonable burden on the school, it may refuse to permit it.’
(References
omitted).
These authoritative remarks are
equally relevant in this case. It must be left to employers and their
employees to develop systems
in their workplaces when confronted with
these challenges.
[28] In my view, the decision reached
by the commissioner on the facts is not the one that a reasonable
decision maker could not
reach. Her conclusions are supported by
reasons. I am not persuaded that a different approach in the
reasoning process by the commissioner
could have resulted in a
different outcome, regard being had to the grounds of review and the
submissions on behalf of the appellant.
I am satisfied that the
commissioner was alive to the issues in this matter and properly
applied her mind to the material before
her. Another commissioner may
as well have arrived at a different conclusion. However, the matter
was not on appeal but on review
and the distinction between the two
must be recognised. The appeal should therefore not succeed.
[29] What remains to be decided is the
issue of costs. I am persuaded by the submission on behalf of the
appellant that this is
a matter where costs should not follow the
result. The issue raised in this matter is novel and the appellant
did not act unreasonably
in approaching this court on appeal. It
would therefore be in accordance with the requirements of the law and
fairness that there
be no order as to costs.
[30] In the result, the following
order is made:
1. The appeal is dismissed.
2. There is no order as to costs.
___________________
TLALETSI, JA
Judge of the Labour Appeal Court
Ndlovu JA and Murphy AJA concur in the
judgment of Tlaletsi JA.
Appearances:
For the appellant: J L Pienaar
Instructed by: Louw Pienaar Attorneys
For the respondent: P E Radali (Union
official)
Instructed by: SACCAWU
1
Act
66 of 1995.
2
[2007]
12 BLLR 1097
(CC).
3
Id
at para 109
4
Bester
v
Astral Operations Ltd and Others
[2011]
3 BLLR 129
(LAC) at para 18;
SAMWU v
SALGBC
[2012] 4 BLLR 334
(LAC) at para
11;
CUSA v Tao Ying Metal Industries
and
Others (2008) 29 ILJ 2461 (CC)
[2008] ZACC 15
; ;
2009 (2) SA 204
(CC);
2009 (1) BCLR 9
(CC) at para 76.
5
5
[2008] 3 BLLR 197
(LAC)
at para 101.
6
6
[2008] ZALAC 2
;
[2008] 8 BLLR 723
(LAC)
at para 39.
7
[2011]
11 BLLR 1041
(SCA) at para 5.
8
[2007] ZACC 21
;
2008
(1) SA 474
(CC) at para 107.